South Portland short-term rental ‘horror show’ to be decided by voters

SOUTH PORTLAND — Short-term rental regulation, which has dogged city officials for a year, will be decided by voters Nov. 6.

The issue has already been through two regulation proposals, and two petition recalls. If passed at the polls, regulations banning unhosted short-term rentals in residential areas will be enforceable as of Jan. 1, 2019.

If it fails, existing zoning regulations will remain in effect.

At the core of the ordinance, unhosted stays are banned in strictly residential neighborhoods. Hosted stays, such as renting out a room in a home where the owners are present, would be allowed in residential areas.

Unhosted are also allowed in mixed-use and commercial neighborhoods under the ordinance.

Councilor Maxine Beecher called the issue a “horror show” that she wants residents to end.

Dowling and Rose were the only councilors who voted to repeal the ordinance in favor of discussing an alternative that would clarify current zoning to dictate regulation. Rose has maintained that plain language in city law already bans short-term rentals in residential areas.

He provided councilors with a proposal that in part included hiring another attorney to counsel on legislation and enforcement, and crafting a resolution that restates the policy objective: that non-owner-occupied short-term rentals are business uses that are not permitted in residential zones.

Several residents, including George Corey, Linden Thigpen and Georgia Deveres, agreed that existing code prohibits businesses, including short-term rentals, in strictly residential zones.

Deveres said she keeps coming back to the same statement in the code: “Tourist accommodations are not permitted in residential neighborhoods.”

Corey said licensing for a lodging establishment that requires inspection, and current zoning law, already cover the issue.

Thigpen said it seemed to her that Corporation Counsel Sally Daggett was ambivalent and hesitant to interpret existing code, and she agreed with Rose that issues of enforcement and empowerment of the Code Enforcement Department are needed to address the issue.

Thigpen warned against going to referendum. “The less abrasiveness, the better,” she said.

Councilor Sue Henderson, however, said she respects Daggett’s opinion that the current code is not adequate to regulate the issue and could face a legal challenge.

Rose and Councilor Kate Lewis agreed it is likely that vacation rental websites will spend money to defeat the referendum, but Lewis still favored letting voters decide and said she hopes the ordinance will pass.

“Money talks, we know this,” Rose warned.

Resident Dan Romano said he feels very small compared to the industry that includes players like Airbnb, VRBO and HomeAway. Diane Romano asked residents to take back their neighborhoods by voting to adopt the ordinance.

Rose, who is not seeking re-election to the council, said he chose not to campaign for another term largely due to the short-term rental issue, and because he believes the council is expected to “rubber stamp” executive orders. He said problems of great public import that take up all the council’s time and attention, such as non-conforming lots and tar sands, all have one thing in common — porous enforcement of existing code language.

Rose was also critical of the legal advice the city has received, asserting that local case law that speaks to the issue was not considered.

He referred to a case from 1999, brought against the city by residents who claimed part of a neighbor’s home was being illegally rented while the owners were away for 10 months of the year.

They reported their concerns, but code enforcement determined the homeowners were not in violation of the zoning ordinance. A Superior Court justice agreed, but the case was remanded to the city Zoning Board of Appeals by the Maine Supreme Judicial Court.

Rose said this particular case was never brought to the council’s attention by Daggett, who instead cited cases in California in her legal opinion of how the city should regulate short-term rentals.

Daggett, in an email response Wednesday, said she is aware of the case, but that in her opinion the case “does not shed any light on the city’s complicated short-term residential rental issue.”

She said there is no indication the 1999 case involved a rental of less than 30 days, which is the length of time that now characterizes a short-term rental. The case was also decided on an undefined term in the zoning ordinance – “resident occupant” – and whether the owners were considered residents, not an interpretation of the term by the code enforcement officer or the board of appeals.

Daggett said the opinion does, however, support the “big-picture advice” she provided the City Council: that it would be prudent to craft an explicit policy objective and amend ordinances to avoid the risk that a code enforcement officer, board of appeals or court decision is not consistent with the council’s policy directive.

Residents gathered Sept. 4 at a South Portland City Council meeting to debate whether councilors should send the issue of short-term rental regulations to a referendum. The council voted 5-2 to have voters decide the issue Nov. 6.